CHAMBERS OF
JUSTICE ELENA KAGAN
Supreme Court docket of the USA Washington, D. C. 20343
February 7, 2016
Memorandum to the Convention
Re: 15A773 West Virginia, et al. v. EPA, et al.
15A776 Basin Elec. Energy Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al.
15A778 Murray Vitality Corp., et al. v. EPA, et al.
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15A793 North Dakota v. EPA, et al.
I agree with Steve that we should always direct the States to hunt an extension from the EPA earlier than asking this Court docket to intervene. We might additionally embody, on the finish of such an order, language alongside the strains of the next, to encourage the D. C. Circuit to behave expeditiously in its decision of this matter: “In mild of that court docket’s settlement to think about this case on an expedited schedule, we’re assured that it’ll [or even: we urge it to] render a choice with applicable dispatch.” See Doe v. Gonzales, 546 U. S. 1301, 1308 (2005) (GINSBURG, J., in chambers); Kemp v. Smith, 463 U. S. 1344, 1345 (1983) (Powell, J., in chambers); Holtzman v. Schlesinger, 414 U. S. 1304, 1305, n. 2 (1973) (Marshall, J., in chambers).
The distinctive nature of the reduction sought in these functions provides me actual pause. The candidates ask us to enjoin a regulation pending preliminary evaluate within the court docket of appeals. As we frequently say, “we’re a court docket of evaluate, not of first view.” See Cutter v. Wilkinson, 544 U. S. 709, 718 n. 7 (2005); cf. Doe, 546 U. S., at 1308 (“Re- spect for the evaluation of the Court docket of Appeals is particularly warranted when that court docket is continuing to adjudication on the deserves with due expedition.”). So far as I can inform, it will be unprecedented for us to second-guess the D. C. Circuit’s deci sion {that a} keep just isn’t warranted, with out the good thing about full briefing or a previous judi- cial choice.
On the deserves, it is a troublesome case involving a fancy statutory and regu- latory regime. Though the events’ abbreviated dialogue of the problems at stake right here makes it troublesome for me to find out with any confidence which aspect is prone to in the end prevail, it appears to me that at this stage the federal government has the bet- ter of the arguments. The Chief’s memo focuses on the candidates’ argument that the “finest system of emission discount” refers “solely [to] set up of management applied sciences (e.g., scrubbers).” 2/5 Memo, at 2. The strange which means of “system” is in reality fairly broad, showing to embody what EPA has executed right here. After all, we might need to think about this time period within the bigger context of the Clear Air Act’s regula-
